Cannabis Industry Wrestles with Copyrights and Trademarks

In yet another consequence of the disparity between state and federal laws governing legal weed, cannabis companies cannot trademark their products.

But, they’re coming up with clever solutions.

The Los Angeles Times interviewed several people who are directly dealing with the conundrum of how to protect their trademarks with no help from the federal agency that would normally do that.

“You want to protect what you’re doing with the brand name,” said David Tobias, president of publicly traded Cannabis Sativa, “but you have to dance around it.”

He explained that a popular strategy for cannabis companies is to seek protection for a host of related products and services, such as rolling papers, paraphernalia, clothing, etc.

The idea being that if a company registers its trademark for related products it will keep others from copying it and position it to be first in line if/when the federal government changes its position on pot.

“I call it the ‘circle the wagons’ approach,” said Todd Winter, an attorney who works with weed companies. “We get everything trademarked that we can, tangential to the actual cannabis product itself.”

For example, Cannabis Sativa applied for an apparel trademark and intends to put its hi brand on other products, including lozenges for smokers.

Tommy Chong’s, Chong’s Choice, which sells pre-rolled joints, has applied for a trademark for vaporizers and “tobacco” jars.

Mary Shapiro, founder and managing director of Women Grow, said the goal is to get something federally trademarked, and the more closely related to marijuana, the better.

Once a company has even applied to register a trademark, explained the LA Times article, it’s noted in a federal database. When a company seeks to submit a trademark application, they search that database to see if their brand name is already in use and, if so, how.

The goal is to prevent consumer confusion. Different companies can use the same name for products as long as they are in different categories. An example given is Dove soap and Dove-brand chocolate—two very different categories.

The same rules apply in the cannabis industry, but like everything else, it can be tricky.

Weed companies need to be careful to make sure that a trademark gained for ‘related products’ will be enough to ensure that a company has already laid claim to a cannabis-related trademark.

“It raises a red flag that there’s a company already operating in the space,” said Shapiro, a San Francisco-based attorney. “Basically, it’s a warning sign that someone else has claimed rights to the name in connection to cannabis.”

When will legal pot, one of the fastest growing industries in the country, get the respect it deserves and have access to the normal business services everyone else gets?